Monday, April 30, 2012

Did the Good Guy Win? Who Gets the Award of Attorneys' Fees?

It is not uncommon in employment litigation for the plaintiff to receive very little and for the attorney to make out like a bandit!  I often describe the case of Ruiz Foods in a recent lawsuit.  The jury awarded the plaintiff $42,000 and his attorney $428,000. 

Apparently, Ok Chang didn't like her situation any better.  The jury awarded her $62,000.  Her attorney, Henry Lee, was awarded $300,000.  Ms. Chang substituted in as her own attorney in an attempt to collect the funds for herself.  Mr. Lee fought to have the funds paid to him.  (Henry M. Lee Law Corp. v. Super. Ct. (Chang) 2012 DJDAR 4763.) 

Ms. Chang filed a lawsuit alleging unpaid wages and overtime, waiting period penalties under Labor Code section 203, failure to provide an itemized statement, liquidated damages and prejudgment interest.  (Ms. Chang was awarded $30,000 for unpaid minimum wages.  That tells me that she could really use the $300,000 in attorneys' fees if she is working below minimum wage.)  The court awarded Chang $300,000 in attorneys' fees under Labor Code sections 1194(a) and 226(e).  Each of those statutes state that the employee is entitled to recover attorneys' fees for any wrong incurred. 

The Court of Appeal was asked to consider whether the fees awarded should go to the employee or to her attorney.  The court concluded that the money should go to the attorney as opposed to the employee.  The court relied on Flannery v. Prentice (2001) 26 Cal.4th 572, a case with the identical question about the Fair Employment and Housing Act.  In Flannery, the Supreme Court concluded that the term "party" does not necessarily mean just the litigant (employee) but could also apply to the litigant's attorney.  Moreover, chilling an attorney's ability to obtain fees will result in fewer cases being filed (and less justice being dispensed).  The Legislature intended to encourage lawyers to take cases of persons who could not otherwise afford to sue. 

Thus, the rule is that absent a contract otherwise determining the disposition of an attorneys' fees award, the fees go to the attorney. 

So, did the good guy win? 

The EEOC and Background Checks

On April 25th, the EEOC issued a 52 page document entitled Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under the Civil Rights Act of 1964.  (I guess a long name justifies a long document??) 

The EEOC is concerned about the effect of background checks on persons of particular races or national origin.  For example, while only one in every 87 white males ages 18 to 64 is incarcerated, the number for similarly-aged Hispanic males is one in 36, for African-American men it is one in 12.  Thus, if an employer rejects applicants due to criminal convictions, more Hispanics and more African-Americans will be unable to secure employment. 

According to the EEOC, an employer's practice, such as conducting background checks, may constitute a violation of Title VII if the practice has a disparate impact on a protected class unless the practice is job-related and consistent with business necessity.  An employer will successfully demonstrate job-relationship and business necessity in two circumstances: 
(1) The employer validates the criminal conduct exclusion for the position in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
(2) The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. 

I am a firm believer in background checks.  The best indicator of future performance is past performance.  However, the EEOC is telling me and employers that this adage may be unlawful unless we make an individualized assessment whether the results of a background check, and decision to reject a candidate based on those results, is individualized.  In other words, making a blanket decision not to hire a candidate based on his/her criminal background may be unlawful unless the employer can show that the nature of the crime, its proximity to the date of the application, and the nature of the job justifies rejecting the candidate. 

Employers will need to better understand the EEOC position, and the impact on their background screening policies.  We will hold a training session to help employers meet their legal obligations and avoid an EEOC enforcement action.  If you are not on our mailing list for trainings, please contact and ask to be put on the list. 

The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.

Monday, April 23, 2012

The Saga Continues ... NLRB Posting Rule

Under the Obama administration, the National Labor Relations Board ("NLRB") has become much bolder in the position it has taken.  Some time ago, the NLRB decided that employers should be required to post a notice describing employee rights under the National Labor Relations Act ("NLRA").  The notice is interesting for multiple reasons. 

Let's start with the form of the Notice.  It is 11 x 16, stark white background with dark blue Headings and black text.  So there is no chance it can't be missed.  At the bottom of the Notice is a warning in bolded black:  "This is an official Government Notice and mus not be defaced by anyone."  I'm not sure what this mean.  I understand the "don't deface" language.  But why is it an "official Government Notice"?  Isn't it more accurate to say the government is compelling your employer to post this Notice?  And what will happen if, heaven forbid, someone defaces the "official Government Notice"?  Is there a monetary penalty?  Prison time?  Or are you simply forced to erase the graffiti and promise not to do it again? 

The Notice has more bolded black section.  It states that if employees select a union, the employer must bargain in good faith regarding the terms and conditions of employment. The telephone number to contact the NLRB is also bolded. 

The Notice identifies employees' rights to organize, form a union, bargain collectively, discuss the terms and conditions of employment, take action to improve conditions and strike.  The Notice also contains a list of things an employer can't do. 

The Notice ends with an * indicating that the NLRA covers most private-sector employers.  Of course, the Notice is too small to contain an explanation of the NRLB's jurisdiction.  But why sweat the details? 

According to the NLRB, this Notice should have been posted already.  But delays were encounters and the posting date was pushed back.  Courts examined the issue.  One recently said the poster is legitimate and the NLRB can order its posting.  But just a few days ago, another court said nope, the NLRB cannot compel an employer to post the Notice. 

In light of this situation, the NLRB Chairman, Mark Gaston Pearce issued to following statement: 

In light of conflicting decisions at the district court level, the DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.

In view of the DC Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.

In March, the D.C. District Court found that the agency had the authority to issue the rule. The NLRB supports that decision, but plans to appeal a separate part that raised questions about enforcement mechanisms. The agency disagrees with and will appeal last week’s decision by the South Carolina District Court, which found the NLRB lacked authority to promulgate the rule.

Chairman Mark Gaston Pearce said of the recent decisions, “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.”
I question the NLRB's authority to compel employers to post the Notice.  And I am confident that the NLRB's sentiment that a "genuine service" is provided to employees is not justification for the exercise of jurisdiction. 

We will now wait and watch for the next round in the saga of the NLRB Notice. 

Friday, April 20, 2012

Can You Compel Your Employees To Show Up?

It is difficult to conceive why an employer would be required to defend its attendance policy in court.  Unfortunately, many employees have challenged their employers' position that showing up to work on time is an essential function of the job.  In a recent Ninth Circuit case, Monika Samper challenged her employer's attendance policy.  Samper v. Providence St. Vincent Medical Center, Case 10-35811 (9th Cir. Apr. 11, 2012.  The case is instructive for several reasons.  First, the opinion identifies the reasons why attendance, at least in certain jobs, is an essential part of the job.  Second, the case demonstrates how an employee's take advantage of employer's generosity.  As frequently heard, "No good deed goes unpunished."

Monika exceeded the permissible five unplanned times within a 12-month period.  The hospital noted this in her evaluation.  Monika predicted she would not have further problems because the absences were related to a nasty divorce, which was now behind her.  This was not to be.  Monika continued to exceed the five unplanned absence limit.  She blamed her medical condition and sought an accommodation -- a free pass from the hospital's favorable absence policy. 

The hospital then gave her additional time off, that did not count against the five absence limit -- to attend a trial of her husband, to obtain counseling, and to obtain medical treatment.  Yet, Monika continued to miss work until she was fired.  (She should have been happy.  She didn't have to go to work at all then.) 

The court articulated reasons for attendance.  They included working as a team, interacting face to face with customers and co-workers, and working with on-site equipment.  The court even went so far as to say that on-site regular attendance as an essential element of a job is a "common sense" notion.  Working as a NICU nurse is a prime example of why attendance is required.  Nevertheless, whether or not attendance is essential to a particular job requires an individualized assessment of the position. 

I was glad to read the court's strong language regarding attendance.  We see this situation much too frequently.  Employees with bad habits claim a medical condition prevents timely and regular attendance.  I just can't buy it.   Work is just that -- work.  It requires dedication, discipline and action.  Going to work everyday is a basic fundamental of success.  If people want to enjoy success, they must be at work, every day, on time.  And our laws should reflect the values of discipline and consistency.  Otherwise, we do Monika and others like her a disservice. 

Wednesday, April 18, 2012

Did You Remember to Pay Your Taxes Yesterday?

Jared Callister, a tax attorney in our office, was interviewed by John Malos yesterday on a host of tax issues.  I think you will find the interview interesting.  (Yes, even taxes can be interesting!)  Check him out at

Tuesday, April 17, 2012

AB 1831 - "Ban the Box"

The National Employment Law Project ("NELP") and other organizations and persons are engaging in a campaign called "Ban the Box."  The project title refers to the box on an employment questionnaire that asks, "Have you ever been convicted of a crime?" 

Assembly member Dickinson has introduced AB 1831 that would, if enacted, prevent a local agency from making an inquiry regarding, or considering the criminal history of any applicant in the initial employment application.  An inquiry or a background check into an applicant's criminal history would be authorized only after it was determined whether the applicant possesses the skills commensurate with the position. 

The theory is that persons with criminal history face an insurmountable hurdle in obtaining a job after a criminal conviction.  Moreover, activists contend that a person with a job is less likely to commit another crime. 

Let me start by saying that I own a company, Sierra HR Partners, that conducts background checks.  (If you don't use Sierra HR, you should.  There are so many background investigation companies who don't do it right and who could get you into legal hot water!)  And I agree with the advice of Brenda Budke, Sierra HR's Executive Director, that the best indicator of future behavior is past behavior.  I tell my clients to conduct background checks on everyone they intend to hire.  You learn so many valuable things from background investigations -- criminal or otherwise. 

But I am also sympathetic to the plight of persons who find it difficult to locate employment after a criminal conviction.  I know, you're telling me that the criminal should have thought about the consequences before engaging in a criminal act!  Yes, that is true.  But how many of us have engaged in a rash act, without thought or consideration of the consequences?  Perhaps there are many of us who just didn't get caught.  Or perhaps some of us could afford a good lawyer.  Is the line between most of us in society so thick that a meaningful distinction can be made among us without a thorough examination of all the facts? 

I am not sure that AB 1831 is the answer.  For example, I could probably determine that a person had been incarcerated by asking questions about employment history.  "So what's with the 3-year gap in employment?" would be the question.  And at that point, what is the applicant to do?  Lie?  Tough predicament.  And eventually the employer will conduct a background check.  And what about the tort system -- will it adopt a safe harbor for employers who hire persons convicted of crimes?  And even without conducting a check, by the way an applicant comports him or herself, an employer has a good idea of his/her characteristics.  Tattoos, dark prison boots and denim are all give aways of an uncomfortable past. 

We certainly need to do something in society to assist those who have made bad choices reform.  Activists would argue that a presumption of rehabilitation should accompany release from prison.  Wow!  What planet are you from????  Not a very likely presumption given the state of our prison system.  But perhaps we could spend less money on incarceration and prison guard salaries if we had meaningful opportunities and programs to try and rehabilitate persons convicted of a crime. 

Certainly, I would want that chance if I was in that situation.  And I would want that opportunity for family and friends.  Is it just "the other guy" who shouldn't get that opportunity? 

I am interested in hearing your thoughts on AB 1831 and how to integrate persons convicted of crimes back into society in a meaningful way. 

Thursday, April 12, 2012

It's Here! The Supreme Court Issues The Brinker Decision

At 10 am today, the California Supreme Court issued its 54 page decision in Brinker.  The case was filed in 2004 by employees who challenged the company's meal and rest period practices.  The case presented a number of legal issues.  However, foremost among the issues is whether or not an employer is required to provide and ensure compliance with meal and rest periods, or whether the employer is required only to make them available to employees. 

Here is a link to the Supreme Court's decision:  Paste this website into your browser to take you to the opinion. 

You will be happy with the Court's decision!  Here is a quick summary of the Court's opinion: 

1.  An employer is obligated to provide an uninterrupted 30-minute meal period to employees.  This obligation is satisfied if it relieves employees of all duties, relinquishes control over activities and permits a reasonable opportunity to take the meal period without impediment or discouragement.  The employer is not obligated to police meal periods and ensure that no work is performed.  An employee can waive the meal period by continuing to work.  Further, proof that an employer had knowledge of employees working through a meal period does not alone subject the employer to liability for premium pay.  The employee must show employer interference with that right. 

2.  Rest periods must be provided to employees as follows:  10 minutes for shifts of 3.5 to 6 hours; 20 minutes for shifts from 6 to 10 hours; 30 minutes for shifts from 10 to 14 hours, etc.

3.  An employer is not required to provide a rest period before a meal period.  However, an employer must make a good faith effort to permit rest periods in the middle of each work period unless practical considerations render it infeasible.  

4.  The meal period must be provide no later than the start of the employee's sixth hour of work.  The second meal period must be provided no later than the start of the employee's eleventh hour of work (unless waived). 

We hope you will join FLGZ at its Legal Beagle Bagel Breakfast this month discussing the impact of the Brinker decision on your operations.  The workshop will be held on Wednesday, April 25th at 8 am in my office.  Please register to attend in person, or by telephone, by contacting our receptionist, Danielle, at or by calling 559.256.5000. 

Monday, April 9, 2012

Accessibility and Swimming Pools

Periodically over the past 10 years businesses along the Highway 99 corridor have been fleeced for allegedly violating public accommodation statutes designed to assist those with disabilities.  The lawyers who file these actions -- typically thousands of lawsuits -- seek $4,000 per alleged violation.  And these violations can be as minor as a mirror that is an inch too high off of the floor. 

Get ready for another round of access lawsuits.  The United States Department of Justice has finalized swimming pool access regulations.  For pools without sloping access, this will mean the purchase and installation of a permanent pool lift. 

California businesses have been subject to pool access regulations since 1982, as part of the California Building Code.  But as one lawyer stated, "many [businesses] either don't know ... or care and, a large number of them have been sued for this violation of California law and paid large sums of money." 

I advise businesses open to the public to contact a certified access specialist and analyze access issues.  In our representation of businesses, it is not uncommon even on small cases to defend against 10 or more claims of alleged violations.  At $4,000 per violation, you are already at $40,000.  Then, of course, there are attorneys' fees.  Isn't the law wonderful!